Case: 11-60446
Document: 00511636925
Page: 1
Date Filed: 10/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
Case No. 11-60446
________________
HANCOCK COUNTY BOARD OF SUPERVISORS,
Plaintiff
v.
KAREN LADNER RUHR, in her official capacity as Hancock County Circuit Clerk and Hancock County
Registrar; ET AL,
Defendants
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
HAZLEHURST, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all others similarly situated;
NANETTE THURMOND-SMITH,
Plaintiffs - Appellants
v.
COPIAH COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; COPIAH COUNTY, MISSISSIPPI
DEMOCRATIC PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI REPUBLICAN
PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI BOARD OF ELECTION
COMMISSIONERS; EDNA STEVENS, in her official capacity as Circuit Clerk,
Defendants - Appellees
________________________
BRIEF FOR APPELLANTS
________________________
Submitted by:
*Carroll Rhodes, Esq. MSB # 5314
Law Offices of Carroll Rhodes
Post Office Box 588
Hazlehurst, Mississippi 39083
Telephone: (601) 894-4323
Facsimile: (601) 894-1464
E-Mail: crhode@bellsouth.net
*Counsel of Record
Deborah McDonald, Esq. MSB #2384
Post Office Box 2038
Natchez, Mississippi 39121-2038
Telephone: (601) 445-5599
Facsimile: (601) 442-5400
E-Mail: attorneydmc@bellsouth.net
**Leonard McClellan, Esq., MSB #2221
**Mr. McClellan died on September 20, 2011
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JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
REVEREND FRANK LEE; PIKE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves
and all others similarly situated,
Plaintiffs - Appellants
v.
PIKE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; PIKE COUNTY, MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE COMMITTEE; PIKE COUNTY, MISSISSIPPI BOARD OF
ELECTION COMMISSIONERS; ROGER GRAVES, in his official capacity as Circuit Clerk; PIKE
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
SIMPSON COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all others similarly
situated; L. J. CAMPER, on behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
SIMPSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; SIMPSON
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; SIMPSON
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; SIMPSON
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; CINDY JENSEN, in
capacity as Circuit Clerk,
Defendants - Appellees
COUNTY,
COUNTY,
COUNTY,
her official
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
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___________________________________________________________________________
AMITE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on Behalf of Themselves and all others Similarly
Situated; GLENN WILSON, on Behalf of Themselves and all others Similarly Situated,
Plaintiffs - Appellants
v.
AMITE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; AMITE COUNTY, MISSISSIPPI
DEMOCRATIC EXECUTIVE COMMITTEE; AMITE COUNTY, MISSISSIPPI REPUBLICAN
EXECUTIVE COMMITTEE; AMITE COUNTY, MISSISSIPPI BOARD OF ELECTION
COMMISSIONERS; SHARON WALSH, in Her Official Capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
WAYNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on Behalf of Themselves and all Others Similarly
Situated; LEAH PARSON, on Behalf of Themselves and all Others Similarly Situated,
Plaintiffs - Appellants
v.
WAYNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WAYNE
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; WAYNE
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; WAYNE
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; ROSE BINGHAM, in
Capacity as Circuit Clerk,
COUNTY,
COUNTY,
COUNTY,
her official
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
VICKSBURG, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on Behalf of Itself and all Others Similarly Situated,
Plaintiffs - Appellants
v.
WARREN COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WARREN COUNTY,
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MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; WARREN COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SHELLY ASHLEY-PALMERTREE,
in his official Capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
CLAIBORNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, on Behalf of Itself and all Others Similarly
Situated; LEAH PARSON, on Behalf of Themselves and all Others Similarly Situated,
Plaintiffs - Appellants
v.
CLAIBORNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; CLAIBORNE COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; CLAIBORNE COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; CLAIBORNE COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SAMMIE GOOD, in her official
Capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
ADAMS COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on Behalf of Themselves and all Others Similarly
Situated; LEAH PARSON, on Behalf of Themselves and all Others Similarly Situated,
Plaintiffs - Appellants
v.
ADAMS COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; ADAMS COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; ADAMS COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; ADAMS COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; EDWARD WALKER, in his official
Capacity as Circuit Clerk,
Defendants - Appellees
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JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of Mississippi
Intervenor Defendant - Appellee
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Document: 00511636925
Page: 6
Date Filed: 10/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
Case No. 11-60446
________________
HANCOCK COUNTY BOARD OF SUPERVISORS, ET AL,
Plaintiff
v.
KAREN LADNER RUHR, in her official capacity as Hancock County Circuit Clerk
and Hancock County Registrar; ET AL,
Defendants
JIM HOOD, Attorney General for the State of Mississippi, ex rel. the State of
Mississippi
Intervenor Defendant - Appellee
__________________________________________
CERTIFICATE OF INTERESTED PARTIES
___________________________________________
The undersigned counsel of record certifies that the following persons have an
interest in the outcome of this case. These representations are made in order that the
Judges of this Court may evaluate possible disqualification or recusal.
1.
Hazlehurst, Mississippi Branch of the NAACP and Nanette ThurmondSmith, on behalf of themselves and all others similarly situated plaintiffs-appellants.
-I-
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2.
Pike County, Mississippi Branch of the NAACP and Rev. Frank Lee,
on behalf of themselves and all others similarly situated - plaintiffsappellants.
3.
Simpson County, Mississippi Branch of the NAACP and L. J. Camper,
on behalf of themselves and all others similarly situated - plaintiffsappellants.
4.
Amite County, Mississippi Branch of the NAACP and Glenn Wilson, on
behalf of themselves and all others similarly situated - plaintiffsappellants.
5.
Wayne County, Mississippi Branch of the NAACP and Leah Parson, on
behalf of themselves and all others similarly situated - plaintiffsappellants.
6.
Vicksburg, Mississippi Branch of the NAACP, on behalf of itself and all
others similarly situated - plaintiff-appellant.
7.
Claiborne County, Mississippi Branch of the NAACP, on behalf of itself
and all others similarly situated - plaintiff-appellant.
8.
Adams County, Mississippi Branch of the NAACP and Jacqueline
Marsaw, on behalf of themselves and all others similarly situated plaintiffs-appellants.
9.
Jim Hood, Attorney General for the State of Mississippi, ex rel. the State
of Mississippi - defendant-intervenor.
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10.
Carroll Rhodes, Esq., Deborah McDonald, Esq., and Leonard
McClellan, Esq.,* counsel for plaintiffs-appellants - Hazlehurst,
Mississippi Branch of the NAACP and Nanette Thurmond-Smith, on
behalf of themselves and all others similarly situated; Pike County,
Mississippi Branch of the NAACP and Rev. Frank Lee, on behalf of
themselves and all others similarly situated; Simpson County,
Mississippi Branch of the NAACP and L. J. Camper, on behalf of
themselves and all others similarly situated; Amite County, Mississippi
Branch of the NAACP and Glenn Wilson, on behalf of themselves and
all others similarly situated; Wayne County, Mississippi Branch of the
NAACP and Leah Parson, on behalf of themselves and all others
similarly situated; Vicksburg, Mississippi Branch of the NAACP, on
behalf of itself and all others similarly situated; Claiborne County,
Mississippi Branch of the NAACP, on behalf of itself and all others
similarly situated; and Adams County, Mississippi Branch of the
NAACP and Jacqueline Marsaw, on behalf of themselves and all others
similarly situated.
11.
Copiah County, Mississippi Board of Supervisors, Copiah County,
Mississippi Democratic Party Executive Committee, Copiah County,
Mississippi Republican Party Executive Committee, Copiah County,
Mississippi Board of Election Commissioners, and Edna Stevens, in
her official capacity as Circuit Clerk - defendants-appellees.
12.
Pike County, Mississippi Board of Supervisors, Pike County,
Mississippi Democratic Party Executive Committee, Pike County,
Mississippi Republican Party Executive Committee, Pike County,
Mississippi Board of Election Commissioners, and Roger Graves, in
his official capacity as Circuit Clerk - defendants-appellees.
13.
Simpson County, Mississippi Board of Supervisors, Simpson County,
Mississippi Democratic Party Executive Committee, Simpson County,
Mississippi Republican Party Executive Committee, Simpson County,
Mississippi Board of Election Commissioners, and Cindy Jensen, in
her official capacity as Circuit Clerk - defendants-appellees.
*Leonard McClellan, Esq. died on September 20, 2011.
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14.
Amite County, Mississippi Board of Supervisors, Amite County,
Mississippi Democratic Party Executive Committee, Amite County,
Mississippi Republican Party Executive Committee, Amite County,
Mississippi Board of Election Commissioners, and Sharon Walsh, in
her official capacity as Circuit Clerk - defendants-appellees.
15.
Wayne County, Mississippi Board of Supervisors, Wayne County,
Mississippi Democratic Party Executive Committee, Wayne County,
Mississippi Republican Party Executive Committee, Wayne County,
Mississippi Board of Election Commissioners, and Rose Bingham, in
her official capacity as Circuit Clerk - defendants-appellees.
16.
Warren County, Mississippi Board of Supervisors, Warren County,
Mississippi Democratic Party Executive Committee, Warren County,
Mississippi Republican Party Executive Committee, Warren County,
Mississippi Board of Election Commissioners, and Shelly AshleyPalmertree, in his official capacity as Circuit Clerk - defendantsappellees.
17.
Claiborne County, Mississippi Board of Supervisors, Claiborne County,
Mississippi Democratic Party Executive Committee, Claiborne County,
Mississippi Republican Party Executive Committee, Claiborne County,
Mississippi Board of Election Commissioners, and Sammie Good, in
her official capacity as Circuit Clerk - defendants-appellees.
18.
Adams County, Mississippi Board of Supervisors, Adams County,
Mississippi Democratic Party Executive Committee, Adams County,
Mississippi Republican Party Executive Committee, Adams County,
Mississippi Board of Election Commissioners, and Edward Walker, in
his official capacity as Circuit Clerk - defendants-appellees.
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19.
Elise Berry Munn, Esq., Michael G. Berry, Esq., and Berry & Munn,
P.A. - counsel for defendants-appellees - Copiah County, Mississippi
Board of Supervisors, Copiah County, Mississippi Democratic Party
Executive Committee, Copiah County, Mississippi Republican Party
Executive Committee, Copiah County, Mississippi Board of Election
Commissioners, and Edna Stevens, in her official capacity as Circuit
Clerk.
20.
Wayne Dowdy, Esq., and Dowdy & Cockerham - counsel for defendantappellee - Pike County, Mississippi Board of Supervisors.
21.
Alfred Lee Felder, Esq. - counsel for defendant-appellee - Pike County,
Mississippi Democratic Party Executive Committee.
22.
Benjamin E. Griffith, Esq., Daniel J. Griffith, Esq., Michael S. Carr,
Esq., Griffith & Griffith, and Robert Daniel Welch, Esq. - counsel for
defendant-appellee - Simpson County, Mississippi Board of
Supervisors, Simpson County, Mississippi Board of Election
Commissioners, and Cindy Jensen, in her official capacity as Circuit
Clerk.
23,
Benjamin E. Griffith, Esq., Griffith & Griffith, Charles Martin Leggett,
Esq., Cooper Martin Leggett, Esq., and Leggett Law Office, PLLC counsel for defendant-appellee - Wayne County, Mississippi Board of
Supervisors and Rose Bingham, in her official capacity as Circuit Clerk.
24.
Benjamin E. Griffith, Esq., Daniel J. Griffith, Esq., Michael S. Carr,
Esq., Griffith & Griffith, and James R. Sherard, Esq. - counsel for
defendant-appellee - Warren County, Mississippi Board of Supervisors,
Warren County, Mississippi Board of Election Commissioners, and
Shelly Ashley-Palmertree.
25.
Tommie S. Cardin, Esq., Leslie Scott, Esq., John H. Dollarhide, Esq.,
and Butler, Snow, O’Mara, Stevens & Cannada - counsel for
defendants-appellees - Amite County, Mississippi Board of Supervisors
and Claiborne County, Mississippi Board of Supervisors.
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26.
Bryan H. Callaway, Esq., - counsel for defendants-appellees - Adams
County, Mississippi Board of Supervisors, Adams County, Mississippi
Board of Election Commissioners, and Edward Walker, in his official
capacity as Circuit Clerk.
27.
Bobby L. Cox, Esq., and Truly, Smith & Latham - counsel for
defendant-appellee - Adams County, Mississippi Democratic Party
Executive Committee.
28.
Honorable Jim Hood, Harold Edward Pizetta, III, Esq., and Justin L.
Matheny, Esq., - counsel for defendant-intervenor - JIM HOOD,
Attorney General for the State of Mississippi, ex rel. the State of
Mississippi.
/s/ Carroll Rhodes
CARROLL RHODES
COUNSEL OF RECORD FOR
PLAINTIFFS-APPELLANTS
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STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs-Appellants, Hazlehurst, Mississippi Branch of the NAACP and
Nanette Thurmond-Smith, on behalf of themselves and all others similarly situated;
Pike County, Mississippi Branch of the NAACP and Rev. Frank Lee, on behalf of
themselves and all others similarly situated; Simpson County, Mississippi Branch of
the NAACP and L. J. Camper, on behalf of themselves and all others similarly
situated; Amite County, Mississippi Branch of the NAACP and Glenn Wilson, on
behalf of themselves and all others similarly situated; Wayne County, Mississippi
Branch of the NAACP and Leah Parson, on behalf of themselves and all others
similarly situated; Vicksburg, Mississippi Branch of the NAACP, on behalf of itself
and all others similarly situated; Claiborne County, Mississippi Branch of the
NAACP, on behalf of itself and all others similarly situated; and Adams County,
Mississippi Branch of the NAACP and Jacqueline Marsaw, on behalf of themselves
and all others similarly situated , (hereinafter referred to as “plaintiffs”), submit that
oral argument is not necessary in this case inasmuch as the facts and issues are not
complex, and oral argument would not aid the Court.
/s/ Carroll Rhodes
CARROLL RHODES
COUNSEL OF RECORD FOR
PLAINTIFFS-APPELLANTS
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TABLE OF CONTENTS
PAGE(S)
Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-vi
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii-ix
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x-xii
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10
a.
Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
b.
Course of Proceedings and Disposition Below . . . . . . . . . . . . . . 2-10
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-15
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171.
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-20
2.
The district court abused its discretion by denying
plaintiffs’ motions to amend their complaints . . . . . . . . . . . . . . 21-22
3.
The district court erred in holding that plaintiffs
did not have standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23
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The district court erred in holding that plaintiffs failed
to state an equal population vote dilution claim, and the court
abused its discretion by denying preliminary and permanent
injunctions enjoining elections in supervisor districts that
violated the one-person one-vote principle . . . . . . . . . . . . . . . . 23-27
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-31
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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TABLE OF AUTHORITIES
CASE(S)
PAGE(S)
Brown v. Thomson, 462 U. S. 835, 103 S. Ct.
2690, at 2696, 77 L. Ed. 2d 214 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Bryant v. Lawrence County, Mississippi, 814 F. Supp.
1346 (S. D. Miss. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F. 3d 285
(5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 19
Daly v. Sprague, 675 F. 2d 716, 723 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . 17, 20
Davis v. Mann, 377 U. S. 678, 691, 84 S. Ct. 1441 (1964) . . . . . . . . 17, 20, 24, 25
Fairley v. Forrest County, Mississippi814 F. Supp.
1327 (S. D. Miss. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
Fairley v. Hattiesburg, Mississippi, 584 F. 3d 660 (5th Cir. 2009) . . . . . . . . . . . 25
Fairley v. Patterson, 493 F. 2d 598 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . 20, 23
Georgia v. Ashcroft, 539 U. S. 461, 123 S. Ct.
2498, 156 L. Ed. 2d 428 (2003) . . . . . . . . . . . . . . . . . . 17, 20, 22, 23, 25, 27
Lujan v. Defenders of Wildlife, 504 U. S. 555,
112 S. Ct. 2130 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23
McKinney v. Irving Independent School District,
309 F. 3d 308(5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 21, 22
Menchaca v, Chrysler Credit Corp., 613 F. 2d 507
(5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 19
x-
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Mississippi State Conference of the NAACP v.
Barbour, 2011 WL 1870222 (S. D. Miss. 2011)
(three-judge court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Moore v. Itawamba County, Mississippi, 431 F. 3d
257 (5th Cir. 2005) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Qureshi v. United States, 600 F. 3d 523 (5th Cir. 2010) . . . . . . . . . . . . . . . . 16, 20
Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362,
12 L. Ed. 2d 506 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25
Robinson v. TCI/US West Communications Inc.,
117 F. 3d 900, 904 (th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sixty-Seventh Minnesota State Senate v. Beens, 406 U. S.
187, 195, 92 S. Ct. 1477 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24, 25
United States v. Louisiana, 515 U. S. 737, 115 S. Ct. 2431,
132 L. Ed. 2d 635 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Walch v. Adjutant General’s Department of Texas,
533 F. 3d 289, 293 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
White v. Weiser, 412 U. S. 783, 93 S. Ct.
2348, 37 L. Ed. 2d 335 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 26, 27
Wise v. Lipscomb, 437 U. S. 535 , 98 S. Ct.
1493, 57 L. Ed. 2d 411 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 27
Wyche v. Madison Parish Police Jury, 635 F. 2d
1151 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-xi-
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Zaidi v. Erhlich, 732 F. 2d 1218 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . 17, 21, 22
Statutes and Other Authorities:
28 U. S. C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U. S. C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U. S. C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U. S. C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
14th amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . 4
Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 19
Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. 18, 19
Fed. R. Civ. P. 15(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
42 U. S. C. § 1973c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-xii-
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JURISDICTIONAL STATEMENT
This appeal is from an Order Denying Motions to Alter, Amend, or Correct
Order of Dismissal, [R.1 1839-1841, R. E.2 101a3-103a, Tab 11], which is equivalent
to an order denying a motion to amend the final judgment. This appeal is also from
the Memorandum Opinion and Order of Dismissal. [R. 1711-1729, R. E. 82a-100a,
Tab 10], which is equivalent to a final judgment. The Memorandum Opinion and
Order of Dismissal was rendered by the United States District Court for the Southern
District of Mississippi on May 16, 2011. [R. 1711-1729, R. E. 82a-100a, Tab 10].
The Order Denying Motions to Alter, Amend, or Correct Order of Dismissal was
rendered by the United States District Court for the Southern District of Mississippi
on June 13, 2011. [R. 1839-1841, R. E. 101a-103a, Tab 11]. Plaintiffs-appellants4
filed their Notice of Appeal on June 28, 2011, [R. 1842-1850], and their Amended
Notice of Appeal on June 29, 2011. [R. 1851-1860, R. E. 183a-192a, Tab 20].
Appellate jurisdiction is based on 28 U. S. C. § 1291. The district court exercised
federal question jurisdiction pursuant to 28 U. S. C. §§ 1331 and 1343.
1
The initial “R.” refers to the original record followed by page numbers.
2
The initials “R. E.” refer to the original record excerpts followed by page numbers.
3
The letter “a” following the page numbers indicate that these pages are contained in the
original record excerpts.
4
The plaintiffs-appellants will hereinafter be referred to as “plaintiffs.”
1
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STATEMENT OF THE ISSUE IN THE CONSOLIDATED CASE
The issues on appeal are:
1.
Whether the district court abused its discretion by denying
plaintiffs’ motions to amend their complaints.
2.
Whether the district court erred in holding that plaintiffs
did not have standing.
3.
Whether the district court erred in holding that plaintiffs failed
to state an equal population vote dilution claim, and the court
abused its discretion by denying preliminary and permanent
injunctions enjoining elections in supervisor districts that
violated the one-person one-vote principle.
STATEMENT OF THE CASE
a.
Nature of the Case.
This is an equal population vote dilution case involving the one-person, onevote principle of the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution and the appropriate remedy under 42 U. S. C. § 1983.
b.
Course of Proceedings and Disposition Below.
The Hancock County Board of Supervisors (“Hancock County”) filed its
complaint on December 14, 2010 asserting an equal population vote dilution claim5
5
An equal population vote dilution claim is one brought under the equal population
principle, which is commonly referred to as the one-person one-vote principle of the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution. See,
Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).
2
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and seeking declaratory and injunctive relief against the Republican Party Executive
Committee, the Democratic Party Executive Committee, and Karen Ruhr - the Circuit
Clerk and Registrar. [R., 40-48]. The county sought a declaratory judgment that
current supervisor districts were unconstitutionally malapportioned and an injunction
staying the imposition of the candidate qualification deadline. [R., 47-48]. The relief
requested was limited to Hancock County only. [R., 40-48].
On February 28, 2011, plaintiffs, the Adams County, Mississippi Branch of the
NAACP and Jacqueline Marsaw (“Adams County NAACP”), the Amite County,
Mississippi Branch of the NAACP and Glenn Wilson (“Amite County NAACP”), the
Claiborne County, Mississippi Branch of the NAACP (“Claiborne County NAACP”),
the Hazlehurst, Mississippi Branch of the NAACP and Nanette Thurmond-Smith
(“Copiah County NAACP”), the Pike County, Mississippi Branch of the NAACP and
Rev. Frank Lee (“Pike County NAACP”), the Simpson County, Mississippi Branch
of the NAACP and L. J. Camper (“Simpson County NAACP”), the Vicksburg,
Mississippi Branch of the NAACP (“Warren County NAACP”), and the Wayne
County, Mississippi Branch of the NAACP and Leah Parson (“Wayne County
NAACP”), filed complaints and motions seeking declaratory and injunctive relief
against election officials in Adams, Amite, Claiborne, Copiah, Pike, Simpson,
3
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Warren, and Wayne Counties.6 [R. E. 43a, 47a, 51a, 56a, 61a, 67a, 73a, and 79a,
Tabs 2-9]. The basis for each complaint and motion for a preliminary injunction was
that each county’s apportionment scheme for supervisor districts was
unconstitutionally malapportioned.7 Plaintiffs sought to enjoin the 2011 elections
for supervisor in each county and to implement an apportionment scheme that was not
retrogressive, did not dilute black voting strength, and complied with the equal
population principle. [R. 521-530, 580-589, 601-609, 618-627, 743-752, 764-773,
785-794, 802-811, R. E. 104a-182a, Tabs 12-19].
On March 1, 2011, intervenor, Mississippi Attorney General Jim Hood, filed
a motion to consolidate the Adams County NAACP case, the Amite County NAACP
case, the Claiborne County NAACP case, the Copiah County NAACP case, the Pike
County NAACP case, the Simpson County NAACP case, the Warren County NAACP
case, and the Wayne County NAACP case with the Hancock County case. [R. 19310]. Attorney General Hood filed a supplemental motion to consolidate the cases
on March 2, 2011. [R. 311-324]. The district court entered an Order on March 23,
6
The election officials are the Board of Supervisor, the Board of Election Commissioners,
the Republican Party Executive Committee, the Democratic Party Executive Committee, and the
Circuit Clerk for each county. See, R. E. 43a, 47a-48a, 51a, 56a, 61a, 67a, 73a, and 79a, Tabs 2,
3, 4, 5, 6, 7, 8, and 9.
7
Plaintiffs alleged that each county’s apportionment scheme for supervisor districts
violated the one-person one-vote principle of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.
4
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2011 granting the motion and supplemental motion to consolidate. [R. 373-375].
Attorney General Hood filed answers and motions to dismiss the complaints
in the Adams County NAACP case on March 4, 2011, the Claiborne County NAACP
case on March 7 and 8, 2011, the Simpson County NAACP case on March 16 and
17, 2011, and the Warren County NAACP case on March 22, 2011. [R. E. 44a, 52a,
67a-68a, 74a Tabs 2, 4, 7, 8]. The Simpson County, Warren County, and Wayne
County Boards of Supervisors, Boards of Election Commissioners, and Circuit Clerks
filed answers on April 4, 2011. [R.906-934]. The Simpson County and Warren
County Boards of Supervisors, Boards of Election Commissioners, and Circuit Clerks
filed joinders in Attorney General Hood’s motion to dismiss on April 7, 2011.
[R.947-952].
The Adams County Board of Supervisors, Board of Election
Commissioners, and Circuit Clerk filed joinders in Attorney General Hood’s motion
to dismiss on April 8, 2011. [R.972-975]. The Amite County and Claiborne County
Boards of Supervisors filed answers on April 12, 2011. [R. 1145-1159].
Attorney General Jim Hood filed an answer and a motion to dismiss in the lead
consolidated case8 on March 25, 2011 seeking to dismiss the complaints filed by the
Amite County NAACP, the Copiah County NAACP, the Pike County NAACP, and
the Wayne County NAACP. [R. 393-446].
8
The Pike County, Mississippi Board of
The lead consolidated case is the Hancock County case.
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Supervisors filed an answer on March 28, 2011, [R. 447-452], and the Pike County,
Mississippi Democratic Party Executive Committee filed an answer on March 29,
2011. [R. 453-465]. The Wayne County Board of Supervisors, Board of Election
Commissioners, and Circuit Clerk filed joinders in Attorney General Hood’s motion
to dismiss on April 7, 2011. [R.953-955]. The Copiah County Board of Supervisors,
Board of Election Commissioners, and Circuit Clerk filed joinders in Attorney
General Hood’s motion to dismiss on April 8, 2011. [R.956-959].
The Adams County NAACP filed two motions to amend the complaint, with
amended complaints attached adding Brenda Proby as a plaintiff, on March 18, 2011.
[R. E. 126a-169a, Tab 2]. The Adams County NAACP filed a third motion to amend
the complaint, with an amended complaint attached adding Brenda Proby as a
plaintiff, on March 18, 2011. [R. 517-537, R. E. 104a-113a, Tab 12]. The Adams
County, Mississippi Board of Supervisors and Board of Election Commissioners filed
answers on March 17, 2011. [R. E. 44a, Tab 2]. The Adams County Democratic
Executive Committee filed an answer on March 31, 2011. [R. 720-723]. Attorney
General Hood filed a response opposing the Adams County NAACP’s third motion
to amend on April 11, 2011. [R. 1074-1079].
The Amite County NAACP filed a second motion to amend the complaint, with
an amended complaint attached adding Hugh McGhee as a plaintiff, on March 30,
6
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2011. [R. 576-596, R. E. 114a-123a, Tab 13]. Attorney General Hood filed a
response opposing the Amite County NAACP’s second motion to amend on April 11,
2011. [R. 1080-1085].
The Claiborne County NAACP filed a second motion to amend the complaint,
with an amended complaint attached adding Robert Butler as a plaintiff, on March 30,
2011. [R. 597-613, R. E. 124a-132a, Tab 14]. Attorney General Hood filed a
response opposing the Claiborne County NAACP’s second motion to amend on April
11, 2011. [R. 1086-1091].
The Copiah County NAACP filed a second motion to amend the complaint,
with an amended complaint attached adding Pamela Jefferson and Robert Catchings
as plaintiffs, on March 30, 2011. [R. 614-637, R. E. 133a-142a, Tab 15]. Attorney
General Hood filed a response opposing the Copiah County NAACP’s second motion
to amend on April 11, 2011. [R. 1092-1097].
The Pike County NAACP filed a second motion to amend the complaint, with
an amended complaint attached adding Gregory Partman as a plaintiff, on March 31,
2011. [R. 739-759, R. E. 143a-152a, Tab 16]. Attorney General Hood filed a
response opposing the Pike County NAACP’s second motion to amend on April 11,
2011. [R. 1098-1103].
The Simpson County NAACP filed a second motion to amend the complaint,
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with an amended complaint attached adding Laster Smith as a plaintiff, on March 31,
2011. [R. 760-780, R. E. 153a-162a, Tab 17].
Attorney General Hood filed a
response opposing the Simpson County NAACP’s second motion to amend on April
11, 2011. [R. 1104-1109].
The Warren County NAACP filed a second motion to amend the complaint,
with an amended complaint attached adding Fannie Tonth as a plaintiff, on March
31, 2011. [R. 781-797, R. E. 163a-172a, Tab 18]. Attorney General Hood filed a
response opposing the Warren County NAACP’s second motion to amend on April
11, 2011. [R. 1110-1115].
The Wayne County NAACP filed a second motion to amend the complaint,
with an amended complaint attached adding Jimmie Green as a plaintiff, on March
31, 2011. [R. 798-820, R. E. 173a-182a, Tab 19]. Attorney General Hood filed a
response opposing the Wayne County NAACP’s second motion to amend on April
11, 2011. [R. 1116-1121].
The Adams County NAACP, the Amite County NAACP, the Claiborne County
NAACP, the Copiah County NAACP, the Pike County NAACP, the Simpson County
NAACP, the Warren County NAACP, and the Wayne County NAACP filed a joint
response to Attorney General Hood’s motion to dismiss on May 9 and 12, 2011. [R.
1624-1707].
8
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A hearing was held in the district court on Attorney General Hood’s motions
to dismiss the complaints. The district court issued its Memorandum Opinion and
Order dismissing plaintiffs’ complaints and denying their motions to amend the
complaints and their motions for preliminary and permanent injunctions. [R. 17111729, R. E. 82a-100a, Tab 10]. The Adams County NAACP, the Amite County
NAACP, the Claiborne County NAACP, the Copiah County NAACP, the Pike
County NAACP, the Simpson County NAACP, the Warren County NAACP, and the
Wayne County NAACP filed a joint Motion to Alter the Judgment and a joint Motion
to Amend or Correct the Memorandum Opinion and Order on May 20, 2011. [R.
1742-1775]. Attorney General Hood filed responses to the joint motions on June 3,
2011. [R. 1790-1800]. The NAACP plaintiffs filed their rebuttal on June 7, 2011. [R.
1801-1810]. The Copiah County, Simpson County, Warren County, and Wayne
County Boards of Supervisors, Boards of Election Commissioners, and Circuit Clerks
filed joinders in the Attorney General’s response to the joint motions on June 8,
2011. [R. 1811-1828p]. The Adams County Board of Supervisors, Board of Election
Commissioners, and Circuit Clerk filed a joinder in the Attorney General’s response
to the joint motions on June 9, 2011. [R. 1829-1834].
The Adams County NAACP, the Amite County NAACP, the Claiborne County
NAACP, the Copiah County NAACP, the Pike County NAACP, the Simpson County
9
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NAACP, the Warren County NAACP, and the Wayne County NAACP filed their
second Motion for a Preliminary Injunction and Motion for a Stay Pending Appeal
on June 1, 2011. [R. 1783-1789]. Attorney General Hood filed his response to this
motion on June 10, 2011. [R. 1835-1839].
The district court entered orders denying the NAACP plaintiffs’ Motion to
Alter or Amend the Judgment, their Motion to Amend or Correct the Memorandum
Opinion and Order, and their second Motion for a Preliminary Injunction and Stay
Pending Appeal on June 13, 2011. [1839-1841, R. E. 101a-103a, Tab 11].
The Adams County NAACP, the Amite County NAACP, the Claiborne County
NAACP, the Copiah County NAACP, the Pike County NAACP, the Simpson County
NAACP, the Warren County NAACP, and the Wayne County NAACP filed their
Notice of Appeal on June 28, 2011, [R. 1842-1850], and their Amended Notice of
Appeal on June 29, 2011. [R. 1851-1860, R. E. 183a-192a, Tab 20].
STATEMENT OF FACTS
This appeal concerns redistricting for eight counties in Southern Mississippi.
[R. 1711-1712, R. E. 82a-83a, Tab 10]. The eight counties are Adams, Amite,
Claiborne, Copiah, Pike, Simpson, Warren, and Wayne. [R. 1712, R. E. 83a, Tab 10].
Each county is governed by a five member board of supervisors whose members are
elected by popular vote every four years. [R. 525, 584, 604, 622, 747, 768, 788-789,
10
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806, R. E. 108a, 118a, 128a, 137a, 147a, 157a, 166a-167a, 177a, Tabs 12-19]. The
term of office for current supervisors expires on December 31, 2011. [R. 525, 584,
604, 622, 747, 768, 789, 806, R. E. 108a, 118a, 128a, 137a, 147a, 157a, 167a, 177a,
Tabs 12-19]. It is the duty of the board of supervisors for each county to redistrict
supervisor districts before the next election in compliance with the equal population
principle. [R. 527, 586, 606-607, 624, 749, 770, 790-791, 808, 1712, R. E. 83a, 110a,
120a, 129a-130a, 139a, 149a, 159a, 168a-169a, 179a, Tabs 10, 12-19].
This year is an election year for the next term of office for county supervisor.
The candidate qualification deadline was March 1, 2011, and party primaries were
held on August 2, 2011 with run-offs held on August 23, 2011. [R. 525, 584, 604,
622, 747, 768, 789, 806, 1712, R. E. 83a, 108a, 118a, 128a, 137a, 147a, 157a, 167a,
177a, Tabs 10, 12-19]. A general election is scheduled for Tuesday, November 8,
2011. [R. 525, 584, 604, 622, 747, 768, 789, 806, 1712, R. E. 83a, 108a, 118a, 128a,
137a, 147a, 157a, 167a, 177a, Tabs 10, 12-19].
The federal decennial census for all Mississippi counties was published on
February 4, 2011. [R. 1712, R. E. 83a, Tab 10]. The census data showed that
supervisor districts in each of the eight counties was unconstitutionally
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malapportioned.9 [R. 525-526,584-585, 605-606, 622-623. 747-748, 768-769. 789790, 806-807, R. E. 108a-109a, 118a-119a, 128a-129a, 137a-138a, 147a-148a, 157a158a, 167a-168a, 177a-178a, Tabs 12-19]. Aggrieved by the unconstitutional
malapportionment, plaintiffs, local branches of the NAACP10 and individual voters,
filed suit against election officials in the eight counties on February 28, 2011 seeking
to enjoin the 2011 elections for supervisor under the current unconstitutionally
malapportioned schemes. [R. 521-530, 580-589, 601-609, 618-627, 743-752, 764773, 785-794, 802-811, 1712, R. E. 43a, 47a, 51a, 56a, 61a, 67a, 73a, 79a, 83a, 104a182a, Tabs 2-10].
The plaintiffs also sought an extension of the candidate
qualification deadline until new apportionment schemes that complied with the equal
population principle could be implemented. [R. 521-530, 580-589, 601-609, 618-
9
The census data shows that the total population deviation in each of the eight counties is:
County
Adams
Amite
Claiborne
Copiah
Pike
Simpson
Warren
Wayne
Total Deviation Percentage
39.46%
49.05%
56.17%
40.36%
18.86%
26.70%
52.74%
30.20%
[R. 526, 585, 606, 623, 748, 769, 790, 807, R. E. 109a, 129a, 138a, 148a, 158a, 168a, 178a, Tabs
12-19]
10
“NAACP” is the acronym for the National Association for the Advancement of Colored
People.
12
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627, 743-752, 764-773, 785-794, 802-811, R. E. 43a, 47a, 51a, 56a, 61a, 67a, 73a,
79a, 104a-182a, Tabs 2-19]. Plaintiffs alleged that current supervisor districts are
unconstitutionally malapportioned and the board of supervisors for each county has
“failed to redistrict...and obtain preclearance11 of any new redistricting plan” in a
timely manner. [R. 527, 586, 606-607, 624, 749, 770, 790-791, 808, R. E. 110a, 120a,
129a-130a, 139a, 149a, 159a, 168a-169a, 179a, Tabs 12-19].
The district court granted Mississippi Attorney General Jim Hood (“Attorney
General Hood”) leave to intervene in the lead case.12 [R. 140]. The NAACP cases
were consolidated with the lead case on March 23, 2011. [R. 373-375]. Attorney
General Hood filed motions to dismiss the NAACP cases between March 4, 2011 and
March 25, 2011. [R. 421-446, R. E. 44a, 52a, 67a-68a, 74a Tabs 2, 4, 7, 8]. Attorney
General Hood argued “the [district] [c]ourt lack[ed] subject matter jurisdiction
...because [p]laintiffs [did] not have standing to bring challenges based on ‘one
person, one vote’ violations.” [R. 1713, R. E. 84a, Tab 10]. Attorney General Hood
also argued “that the [p]laintiffs’ claims fail on the merits.” [R. 1713, R. E. 84a, Tab
11
Plaintiffs alleged the counties were covered by the preclearance requirements of § 5 of
the Voting Rights Act of 1965. 42 U. S. C. § 1973c. [R. 526-527, 585-586, 606, 624, 748-749,
770, 790, 808, R. E. 109a-110a, 119a-120a, 129a, 139a, 148a-149a, 159a, 168a, 179, Tabs 1219].
12
The district court granted Mississippi Attorney General Jim Hood leave to intervene in
the lead case on February 22, 2011, [R. 140], eight days before plaintiffs involved in this appeal
filed suit.
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10].
The plaintiffs had filed motions to amend some of the complaints by adding
plaintiffs who were voters in under represented supervisor districts prior to entry of
the order of consolidation. However, after the cases were consolidated, the plaintiffs
filed new motions to amend all of the complaints by adding voters from under
represented supervisor districts as plaintiffs. [R. 517-537, 576-637, 739-820, R. E.
104a-182a, Tabs 10-19]. Amended complaints and declarations executed by the
individual voters establishing their standing were attached to the motions to amend.
[R. 517-537, 576-637, 739-820]. “The NAACP claims institutional standing in each
of [the] complaints,” including the amended complaints. [R. 521-530, 580-589, 601609, 618-627, 743-752, 764-773, 785-794, 802-811, 1718, R. E. 89a, 104a-182a,
Tabs 10-19].
Attorney General Hood argued and the district court held that although the
plaintiffs alleged an injury in fact, they failed to allege a particularized and concrete
injury that was imminent or actual instead of hypothetical or conjectural. [R. 17181728, R. E. 89a-99a, Tab 10].
The district court entered a Memorandum Opinion and Order on May 16, 2011
denying plaintiffs’ motion to amend the complaints, dismissing the complaints, and
denying plaintiffs’ motions for preliminary and permanent injunctions. [R. 171114
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1729, R. E. 82a-100a, Tab 10]. The district court found that the boards of supervisors
had insufficient time to redistrict after the census data was published. [R. 1726-1727,
R. E. 97a-98a, Tab 10]. However, on May 9, 2011, plaintiffs filed a transcript of a
status conference in Mississippi State Conference of the NAACP v. Barbour, 2011
WL 1870222 (S. D. Miss. 2011) (three-judge court) held on April 22, 2011.13 [R.
1624-1694]. The transcript shows that the Mississippi House of Representatives and
the Mississippi Senate separately adopted legislative redistricting plans after
publication of the census. [R. 1624-1694]. Additionally, Madison County filed a
motion for a preliminary injunction on March 30, 2011 which included evidence that
Madison County had timely redistricted after publication of the census. [R. 482-516].
Plaintiffs filed motions to amend the Memorandum Opinion and Order or to
Correct the Memorandum Opinion and Order on May 20, 2011. [R. 1742-1782]. The
district court entered an order on June 13, 2011 denying the motions. [R. 1839-1841,
R. E. 101a-103a, Tab 11].
Plaintiffs filed a timely notice of appeal. [R.1842-1860, R. E. 183a-192a, Tab
20].
13
Hancock County filed the same transcript on April 28, 2011, [R. 1406-1478], and the
Madison County, Mississippi Board of Supervisors (“Madison County”) filed the transcript on
April 29, 2011. [R. 1479-1553].
15
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SUMMARY OF THE ARGUMENT
The district court granted Attorney General Hood’s motion to dismiss and
denied plaintiffs motions for preliminary and permanent injunctions. The standard
of review on a motion to dismiss is de novo regardless of whether it is a Rule
12(b)(1)14 motion or a 12(b)(6)15 motion. Walch v. Adjutant General’s Department
of Texas, infra; Causey v. Sewell Cadillac-Chevrolet, Inc., infra; Menchaca v,
Chrysler Credit Corp., infra. When considering plaintiffs’ complaints under a Rule
12(b)(6) standard or the record evidence under a Rule 12(b)(1) standard, it is clear
that the motion to dismiss should be denied.
This Court employs an abuse of discretion standard of review when
considering the denial of a preliminary or permanent injunction, and the Court
reviews underlying questions of law de novo. Qureshi v. United States, infra. A de
novo review of the underlying questions of law reveals that plaintiffs had standing
and were entitled to injunctive relief. A review also reveals that the district court
abused its discretion by denying plaintiffs’ request for preliminary and permanent
injunctions.
The district court also denied plaintiffs’ motions to amend their complaints.
14
Fed. R. Civ. P. 12(b)(1).
15
Fed. R. Civ. P. 12(b)(6).
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This Court employs an abuse of discretion standard when reviewing a district court’s
denial of a motion to amend a complaint. Daly v. Sprague, infra. It is an abuse of
discretion for a district court to refuse a plaintiff’s request to amend his or her
complaint before a responsive pleading is filed. Zaidi v. Erhlich, infra. Since
plaintiffs sought to amend their complaints before all the defendants filed responsive
pleadings, their request to amend should have been granted. Zaidi v. Erhlich, infra;
McKinney v. Irving Independent School District, infra.
Plaintiffs had standing to bring the equal population vote dilution action. The
district court erred by dismissing plaintiffs’ complaints. See, Georgia v. Ashcroft,
infra; Davis v. Mann, infra; Sixty-Seventh Minnesota State Senate v. Beens, infra. The
district court abused its discretion by not granting plaintiffs’ request for injunctive
relief. Georgia v. Ashcroft, infra; White v. Weiser, infra; Wise v. Lipscomb, infra.
ARGUMENT
1.
The standard of review.
The district court granted Attorney General Hood’s motion to dismiss and
denied plaintiffs motions for preliminary and permanent injunctions. The district
court considered the motion to dismiss under Fed. R. Civ. P. 12(b)(1) since Attorney
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General Hood argued the court lacked subject matter jurisdiction.16 [R. 1713, R. E.
84a, Tab 10]. The standard of review of a dismissal under Fed. R. Civ. P. 12(b)(1)
or 12(b)(6)17 is de novo. Walch v. Adjutant General’s Department of Texas, 533 F.
3d 289, 293 (5th Cir. 2008). Attorney General Hood made a facial attack on
plaintiffs’ complaint. The Attorney General argued the district court lacked subject
matter jurisdiction based upon a review of the complaints. Apparently the Attorney
General’s motion to dismiss was a Rule 12(b)(1)18 “facial attack” on plaintiffs’
complaints. When a facial attack is made on a complaint under Rule 12(b)(1), the
allegations of the complaint are taken as true. Menchaca v, Chrysler Credit Corp.,
613 F. 2d 507 (5th Cir. 1980). The court only reviews the allegations of the
complaint to determine whether or not subject matter jurisdiction exists. Menchaca
v, Chrysler Credit Corp., supra. A review of plaintiffs’ complaints in the instant case
reveals the court has subject matter jurisdiction and the motion to dismiss should be
denied.
16
Attorney General Hood also argued that plaintiffs failed to state a claim upon which
relief could be granted. This indicates the motion to dismiss was under Fed. R. Civ. P. 12(b)(6).
This Court reviews “de novo dismissals under Rule 12(b)(6).” Causey v. Sewell CadillacChevrolet, Inc., 394 F. 3d 285, 288 (5th Cir. 2004). The well-pleaded allegations of the
complaint are considered to be true. Id.
17
Fed. R. Civ. P. 12(b)(6).
18
Fed. R. Civ. P. 12(b)(1).
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If, however, Attorney General Hood was making a “factual attack” on
plaintiffs’ complaints under Rule 12(b)(1), then the entire record may be reviewed.
Menchaca v, Chrysler Credit Corp., supra. When considering a “factual attack” Rule
12(b)(1) motion to dismiss, the court may consider “(1) the complaint alone; (2) the
complaint supplemented by the undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts.” Id., quoting, Robinson v. TCI/US West Communications Inc., 117 F. 3d 900,
904 (th Cir. 1997). A review under either scenario reveals the court has subject
matter jurisdiction and the motion to dismiss should be denied.
Attorney General Hood also argued that plaintiffs failed to state a claim upon
which relief could be granted. A motion to dismiss based upon this argument is a
Rule 12(b)(6) motion. When considering a Rule 12(b)(6) motion, the allegations of
the complaint are accepted as true. Causey v. Sewell Cadillac-Chevrolet, Inc., supra,
at 288. “The complaint must be liberally construed, with all reasonable inferences
drawn in the light most favorable to the plaintiff.” Id. A Rule 12(b)(6) dismissal
should not be granted unless “it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” Id. A review
of the complaints in the instant case reveals that plaintiffs stated claims upon which
relief could have been and should have been granted. In other words, the motion to
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dismiss should be denied.
This Court employs an abuse of discretion standard of review of the denial of
a preliminary or permanent injunction and a de novo standard of review for the
underlying questions of law. See, Qureshi v. United States, 600 F. 3d 523 (5th Cir.
2010). A de novo review of the facts and allegations in this case as well as the
underlying law reveals that plaintiffs had standing and were entitled to injunctive
relief. See, Fairley v. Patterson, 493 F. 2d 598 (5th Cir. 1974); Lujan v. Defenders of
Wildlife, 504 U. S. 555, 112 S. Ct. 2130 (1992); Georgia v. Ashcroft, 539 U. S. 461,
488, n. 2, 123 S. Ct. 2498, 156 L. Ed. 2d 428 (2003); Reynolds v. Sims, supra; Davis
v. Mann, 377 U. S. 678, 691, 84 S. Ct. 1441 (1964). Furthermore, it is an abuse of
discretion to deny an injunction enjoining elections under malapportioned districts.
See, Georgia v. Ashcroft, 539 U. S. at 488, n. 2..
The district court also denied plaintiffs’ motions to amend the complaints. This
Court employs an abuse of discretion standard when reviewing a district court’s
denial of a motion to amend a complaint. Daly v. Sprague, 675 F. 2d 716, 723 (5th
Cir. 1982). It is an abuse of discretion to deny a motion to amend a complaint to add
parties before ruling on a motion to dismiss. See, McKinney v. Irving Independent
School District, 309 F. 3d 308(5th Cir. 2002).
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The district court abused its discretion by denying
plaintiffs’ motions to amend their complaints.
Plaintiffs had not previously amended their complaints. They had a right to
amend their complaints. A plaintiff who has not previously amended his or her
complaint has a right to amend the complaint before a responsive pleading is filed.
See, Zaidi v. Erhlich, 732 F. 2d 1218 (5th Cir. 1984). “Accordingly, neither a motion
to dismiss nor a motion for summary judgment extinguishes a plaintiff’s right to
amend a complaint.” Id., at 1220. The only amendment plaintiffs requested was for
leave to add plaintiffs who were voters in overpopulated and under represented
supervisor districts. This Court has held:
Rule 15(a) provides that ‘[a] party may amend the party’s pleading
once as a matter of course at any time before a responsive pleading
is served.’ FED. R. CIV. 15(a). Because a Rule 12(b)(6) motion to
dismiss is not a ‘responsive pleading,’ the filing of such a motion
does not extinguish a party’s right to amend as a matter of course.
McKinney v. Irving Independent School District, supra, at 315. The Court stated:
The McKinneys had not previously amended their complaint.
Therefore, they were entitled to amend their complaint at the
time the district court granted defendants’ motion to dismiss.
‘When, as in this case, a plaintiff who has a right to amend
nevertheless petitions the court for leave to amend, the court
should grant the petition.’
Id. Plaintiffs sought leave to amend their complaints before all the defendants filed
responsive pleadings. The district court abused its discretion by not allowing
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plaintiffs to amend their complaints to add plaintiffs who were voters in
overpopulated and under represented supervisor districts. See, McKinney v. Irving
Independent School District, supra; Zaidi v. Erhlich, supra.
3.
The district court erred in holding that plaintiffs
did not have standing.
Attorney General Hood argued and the district court held that plaintiffs who
were voters in overpopulated and under represented supervisor districts did not have
standing to challenge elections in those unconstitutionally malapportioned districts.
[R. 1711-1729, R. E. 82a-100a, Tab 10]. The Attorney General’s arguments and the
district court’s holding were based on the false premise that redistricting is not
required in the year that census data is released. “The central argument underlying
the Attorney General’s motions [to dismiss] is that no constitutional injury will result
from allowing supervisor elections to go forward using the current district lines,
which were drawn after the 2000 census and precleared by the Department of
Justice.” [R.1722, R. E. 93a, Tab 10]. This false premise and Attorney General
Hood’s central arguments are based on two 1993 district court opinions - Bryant v.
Lawrence County, Mississippi, 814 F. Supp. 1346 (S. D. Miss. 1993) and Fairley v.
Forrest County, Mississippi814 F. Supp. 1327 (S. D. Miss. 1993). [R. 1722, R. E.
93a, Tab 10]. Those cases are inconsistent with prior precedent and overruled by
subsequent precedent. See, Georgia v. Ashcroft, 539 U. S. at 488, n. 2.
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Plaintiffs had standing because they suffered an injury-in-fact caused by the
defendants’ conduct which is likely to be redressed by a favorable decision. A party
requesting affirmative relief who has suffered an injury-in-fact caused by the conduct
complained of which is likely to be redressed by a favorable decision has standing.
Lujan v. Defenders of Wildlife, supra; United States v. Louisiana, 515 U. S. 737, 115
S. Ct. 2431, 132 L. Ed. 2d 635 (1995). A party suffering an injury-in-fact in an equal
population vote dilution case is a voter in a district that is overpopulated and underrepresented. United States v. Louisiana, supra; Fairley v. Patterson, supra. The
United States Supreme Court held in Georgia v. Ashcroft, that after a new census, “no
districting plan is likely to be legally enforceable if challenged, given the shifts and
changes in a population over 10 years.” Georgia v. Ashcroft, 539 U. S. at 488, n. 2.
Plaintiffs, who suffered an injury-in-fact19 caused by the defendants’ failure to timely
redistrict, and plaintiffs’ injury was likely to be redressed by a favorable decision had
standing in these cases had standing. See, Lujan v. Defenders of Wildlife, supra;
United States v. Louisiana, supra; Fairley v. Patterson, supra.
4.
The district court erred in holding that plaintiffs failed
to state an equal population vote dilution claim, and the court
abused its discretion by denying preliminary and permanent
19
Plaintiffs alleged they were voters who planned to vote in the August, 2011 primaries
and November, 2011 general election. They alleged they would suffer an injury by having their
vote diluted by being forced to vote in overpopulated and under represented districts.
23
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injunctions enjoining elections in supervisor districts that
violated the one-person one-vote principle.
The district court, relying on arguments of Attorney General Hood, held that
plaintiffs failed to state an equal population vote dilution claim. [R. 1711-1729, R.
E. 82a-100a, Tab 10]. The Attorney General’s arguments and the district court’s
holding were based on two 1993 district court cases - Bryant v. Lawrence County,
Mississippi, supra, and Fairley v. Forrest County, Mississippi, supra. Those cases
held that county boards of supervisors do not have to redistrict in an election year
when census data is released. This holding conflicts with both prior and subsequent
decisions of the United States Supreme Court. The Supreme Court held 29 years
prior to these district court cases that “state legislative malapportionment, whether
resulting from prolonged legislative inaction or from failure to comply sufficiently
with federal constitutional requisites, although reapportionment is accomplished
periodically, falls equally within the proscription of the Equal Protection Clause.”
Davis v. Mann, supra. The Supreme Court held 21 years prior to the district court
cases that an existing apportionment scheme in light of new census figures can
showing a total deviation in excess of 10% is presumptively unconstitutional. SixtySeventh Minnesota State Senate v. Beens, 406 U. S. 187, 195, 92 S. Ct. 1477 (1972).
Finally, the Supreme Court held 10 years after these district court decisions that after
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a new census, “no districting plan is likely to be legally enforceable if challenged,
given the shifts and changes in a population over 10 years.” Georgia v. Ashcroft, 539
U. S. at 488, n. 2. These Supreme Court decisions clearly demonstrate that an equal
population vote dilution claim is established when a new census shows that an
existing apportionment scheme no longer complies with the equal population
principle. Davis v. Mann, supra; Sixty-Seventh Minnesota State Senate v. Beens,
supra; Georgia v. Ashcroft, 539 U. S. at 488, n. 2. “If a population deviance exceeds
10%, it constitutes a prima facie case of invidious discrimination that requires the
[legislature] to prove a legitimate reason for the discrepancy.” Fairley v. Hattiesburg,
Mississippi, 584 F. 3d 660, at 675 (5th Cir. 2009). Once a prima facie case of
malapportionment is established, the evidentiary burden shifts to the state to prove
the “justification for the deviation.” Moore v. Itawamba County, Mississippi, 431 F.
3d 257, at 259 (5th Cir. 2005 (per curiam). The total deviation in each of the
challenged counties exceeds 10%. As a matter of law the deviation in each of these
counties is presumptively unconstitutional. See, Fairley v. Hattiesburg, Mississippi,
supra; Reynolds v. Sims, supra; Brown v. Thomson, 462 U. S. 835, at 842-843, 103
S. Ct. 2690, at 2696, 77 L. Ed. 2d 214 (1983); Wyche v. Madison Parish Police Jury,
635 F. 2d 1151, at 1158 (5th Cir. 1981). There is no state policy which justifies this
deviation. Attorney General Hood argued below that there was insufficient time
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between publication of the census and the election for the boards of supervisors to
redistrict. However, there is no state policy which prohibit supervisors from
redistricting after a new census is published. Furthermore, Hancock County, Madison
County, the Mississippi House of Representatives, and the Mississippi Senate each
passed redistricting plans after publication of the census and prior to the election.20
Madison County received preclearance of its redistricting plan and used that plan to
conduct elections in 2011. This evidence clearly shows there was no state policy
precluding the counties from redistricting after publication of the census and before
the election dates.
The district court abused its discretion by denying plaintiffs’ request for an
injunction. As shown above, the county boards of supervisors had an adequate
opportunity to redistrict but failed to do so. The Supreme Court held in White v.
Weiser that “judicial relief becomes appropriate ... when a legislature fails to
reapportion according to federal constitutional requisites in a timely fashion after
having had an adequate opportunity to do so.” White v. Weiser, 412 U. S. 783, 794795, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973) . It becomes the unwelcome obligation
20
Although the Mississippi House of Representatives and the Mississippi Senate,
respectively, passed redistricting plans for each Chamber, they failed to pass a joint resolution
containing the plans of both Chambers. Nevertheless, the passage of separate plans by each
Chamber indicates that there was sufficient time to redistrict prior to the election.
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of the federal courts to fashion a remedy for malapportioned districts if “the
imminence of a state election makes it impractical” for the legislature to fashion a
remedy. Wise v. Lipscomb, 437 U. S. 535, 540 , 98 S. Ct. 1493, 57 L. Ed. 2d 411
(1978). A plaintiff is entitled to enjoin the next election if the board of supervisors
fails to reapportion after new census figures show that existing districts fail to comply
with the one-person, one-vote mandate. Georgia v. Ashcroft, 539 U. S. at 488, n. 2.
Plaintiffs were entitled to an injunction requiring compliance with the one-person,
one-vote mandate before the August, 2011 primaries and the November, 2011 general
election. White v. Weiser, supra; Wise v. Lipscomb, supra; Georgia v. Ashcroft,
supra, The district court’s holding otherwise was an abuse of discretion.
CONCLUSION
On the basis of the foregoing facts and authorities, the Court should reverse the
decision of the district court and remand the case to the district court with instructions
to set the election results aside, enjoin future elections using the malapportioned
districts, and order new remedial elections in 2012.
This the 18th day of October, 2011.
Respectfully submitted,
NAACP, et. al., on behalf of themselves
and all others similarly situated
/s/ Carroll Rhodes
*CARROLL RHODES, ESQ., MSB # 5314
27
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Date Filed: 10/18/2011
LAW OFFICES OF CARROLL RHODES
POST OFFICE BOX 588
HAZLEHURST, MS 39083
TEL.: (601) 894-4323
FAX: (601) 894-1464
e-mail: crhode@bellsouth.net
*COUNSEL OF RECORD
DEBORAH MCDONALD, MSB #2384
P.O. BOX 2038
NATCHEZ, MS 39120
TEL.: (601) 445-5577
attorneydmc@bellsouth.net
**LEONARD MCCLELLAN, MSB #2221
**Mr. McClellan died on September 20, 2011
ATTORNEYS FOR PLAINTIFFS-APPELLANTS
CERTIFICATE OF SERVICE
I, CARROLL RHODES, hereby certify that I have this day filed and
electronically filed using the Court’s ECF filing system a true and correct copy of the
above and foregoing Brief for Appellants, and the Court electronically served a copy
of the Record Excerpts upon the following:
Harold E. Pizetta, III, Esq.
hpizz@ago.state.ms.us
Special Assistant Attorney General
Justin L. Matheny, Esq.
jmath@ago.state.ms.us
Special Assistant Attorney General
Post Office Box 220
Jackson, Mississippi 39205
Counsel for Intervenor-Appellee Mississippi Attorney General Jim Hood
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Date Filed: 10/18/2011
Bryan H. Callaway, Esq.
bhcallaway@bellsouth.net
Post Office Box 21
Natchez, Mississippi 39121-0021
Bobby L. Cox, Esq.
bobbylcox@att.net
Post Office Box 892
Natchez, Mississippi 39121
Counsel for Adams County, Mississippi Defendants-Appellees
Tomie S. Cardin, Esq.
tommie.cardin@butlersnow.com
Leslie Scott, Esq.
leslie.scott@butlersnow.com
John H. Dollarhide, Esq.
john.dollarhide@butlersnow.com
Butler, Snow, O’Mara, Stevens & Cannada
Post Office Box 6010
Ridgeland, Mississippi 39157-6010
Counsel for Amite and Claiborne Counties, Mississippi Defendants
Elise B. Munn, Esq.
emunn@berrymunnpa.com
Michael G. Berry, Esq.
Berry & Munn, P. A.
Post Office Drawer 768
Hazlehurst, Mississippi 39083
Counsel for Copiah County, Mississippi Defendants-Appellees
C. Wayne Dowdy, Esq.
waynedowdy@waynedowdy.com
Dowdy & Cockerham
215 East Bay Street
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Magnolia, Mississippi 39652
Alfred Lee Felder, Esq.
alfelder1@bellsouth.net
Felder Law Firm
Post Office Box 1261
McComb, Mississippi 39649-1261
Counsel for Pike County, Mississippi Defendants-Appellees
Benjamin E. Griffith, Esq.
bgriff@griggithlaw.net
Daniel J. Griffith, Esq.
danny@griffithlaw.net
Michael S. Carr, Esq.
mcarr@griffithlaw.net
Griffith & Griffith
Post Office Drawer 1680
Cleveland, Mississippi 38732
Counsel for Simpson, Warren, and Wayne Counties, Mississippi
Defendants-Appellees
Charles M. Leggett, Esq.
charles@leggettlawoffice.com
Cooper Martin Leggett, Esq.
cooper@leggettlawoffice.com
Leggett Law Office, PLLC
Post Office Box 384
Waynesboro, Mississippi 39367-0384
Counsel for Wayne County, Mississippi Defendants-Appellees
James R. Sherard, Esq.
sherardjames@att.net
1010 Monroe Street
Vicksburg, Mississippi 39183-2552
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Counsel for Warren County, Mississippi Defendants-Appellees
This the 18th day of October, 2011.
/s/ Carroll Rhodes
CARROLL RHODES
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Date Filed: 10/18/2011
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1.
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
X
this brief contains 6,291 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
__
this brief uses a monospaced typeface and contains ____ lines
of text, excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
X
this brief has been prepared in a proportionally spaced typeface
using Word Perfect 12 Program 14 font size Times New Roman, or
__
this brief has been prepared in a monospaced typeface using
[state name and version of word processing program] with
[state number of characters per inch and name of type style].
/s/ Carroll Rhodes
Attorney for Plaintiffs-Appellants
Dated: October 18, 2011
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United States
Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
October 19, 2011
Mr. Carroll E. Rhodes
Law Offices of Carroll Rhodes
119 Downing Street
P.O. Box 588
Hazlehurst, MS 39083-0000
No. 11-60446, Hancock
USDC
USDC
USDC
USDC
USDC
USDC
USDC
USDC
USDC
County Bd of Supr, et al v. Karen Ruhr, et al
No. 1:10-CV-564
No. 3:11-CV-121
No. 3:11-CV-122
No. 3:11-CV-123
No. 3:11-CV-124
No. 4:11-CV-33
No. 5:11-CV-28
No. 5:11-CV-29
No. 5:11-CV-30
The following pertains to your appellant’s brief electronically
filed on October 18, 2011.
You must submit the seven paper copies of your brief, with blue
covers, as required by 5TH CIR. R. 31.1 within 5 days of the date
of this notice pursuant to 5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies will
result in the dismissal of your appeal pursuant to 5th Cir. R.
42.3.
Sincerely,
LYLE W. CAYCE, Clerk
By:_________________________
Misty L. Fontenot, Deputy Clerk
504-310-7716
cc:
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Ms.
Ms.
Mr.
Michael Garner Berry
Bryan Howard Callaway
Jeremy P. Diamond
Charles Wayne Dowdy
Alfred Lee Felder
Benjamin Elmo Griffith
Justin Lee Matheny
Leonard J McClellan
Deborah Ann McDonald
Elise Berry Munn
Harold Edward Pizzetta III